Court issues mixed ruling on Pa.'s oil and gas law

By Heather Stauffer,
July 21, 2014 at 9:18 AM

Pennsylvania's Commonwealth Court has issued a mixed ruling on the state's oil and gas law, reinstating the rights of local government to regulate where industrial gas operations can occur but also upholding Act 13's medical confidentiality provisions.

Last year, the state Supreme Court struck down as unconstitutional the provisions of Act 13 that sought to force local governments to accept industrial gas operations in every area of their municipality.

Legal counsel for Gov. Tom Corbett challenged that ruling, but in this follow-up decision, the Commonwealth Court followed the Supreme Court's lead — and also prevented enforcement of Sections 3305-3309 of Act 13, which gave the Public Utility Commission and Commonwealth Court jurisdiction to determine whether local ordinances complied with Act 13.

PennFuture, a leading statewide environmental advocacy organization, applauded the municipal part of the decision.

“PennFuture initially opposed the passage of Act 13 because it trampled on the rights of local government to preserve the tranquility of residentially zoned districts and protect public health and the environment,” Cindy Dunn, PennFuture president and CEO, said in a news release. “The Supreme Court struck down those provisions because they were incompatible with the Commonwealth’s duty as trustee of our public natural resources. Further, our neighborhoods should not be turned into industrial zones.”

Dunn also said that while PennFuture was disappointed that the court upheld the medical confidentiality provisions of Act 13, "it is important to note the court presumed that nothing in Act 13 prevented a doctor from disclosing the chemical content of frack fluids to whomever it was necessary to provide proper patient care.”

Similarly, the release said, "while the court also upheld the eminent domain provisions of Act 13, the court’s decision was premised on the fact that those powers were only vested in companies that are public utilities that hold a certificate of public convenience from the Public Utility Commission. Finally, the court also ruled that individual well owners are not entitled to notice when a spill occurs. This point outs the need for Act 13 to be amended to protect those citizen rights."

Joshua Maus, press secretary of the Governor's Office of General Counsel, said the Commonwealth Court’s opinion "speaks volumes to the constitutionality of state regulation of oil and gas activities."

"The Court recognized that the General Assembly, in its wisdom, rightly chose to distinguish between public water facilities and private well owners. Had the Court not ruled in our favor, thousands of well owners could have been subjected to the same sorts of regulations and standards as public water suppliers," Maus said. "In addition, we appreciate the Court’s acknowledgement that, even though it is not required to do so, the Department of Environmental Protection takes action upon notification of a spill to protect and aid private well owners in getting alternative water supplies."

Maus continued:

"We also appreciate the Court’s determination that, as a public entity, those companies empowered to transport, sell or store natural gas maintain eminent domain rights as do any other public utility. This constitutionally-protected power, provided to other public utilities, ensures that gas companies are able to furnish natural gas to the public in a way that is safe, most effective and least costly to the consumer.

"In their opinion, the Court also noted the considerations of the General Assembly to balance the need to disclose confidential information for medical treatment with the public’s interest. Notwithstanding their ruling in our favor, it is important to note that nothing in Act 13 has ever precluded a doctor from providing confidential information to another doctor in order to diagnose or treat an injury.

"Because of legislation like Act 13, Pennsylvania remains one of the most progressive and transparent states in the nation with respect to hydraulic fracture disclosure. While we are carefully evaluating the impact of the Court's ruling on the General Assembly's intended role of the Public Utility Commission under Chapter 33 of Act 13, we thank the Court for their deliberation of the issues presented and we look forward to continuing to make Pennsylvania the nation’s leader in promoting responsible, protective development of natural gas."